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The next-generation of wireless technologies – known as 5G – is here.  Not only is it expected to offer network speeds that are up to 100 times faster than 4G LTE and reduce latency to nearly zero, it will allow networks to handle 100 times the number of connected devices, revolutionizing business and consumer connectivity and enabling the “Internet of Things.”  Leading policymakers – federal regulators and legislators – are making it a top priority to ensure that the wireless industry has the tools it needs to maintain U.S. leadership in commercial 5G deployments.  This blog provides monthly updates on FCC actions and Congressional efforts to win the race to 5G.

Regulatory Actions and Initiatives

Mid-Band Spectrum

  • The FCC rejects calls to reconsider its decision to make spectrum in the 2.5 GHz band available for commercial services and paves the way for an auction of that spectrum in 2021.
    • On December 17, 2020, the FCC released an Order rejecting two petitions for reconsideration (one was withdrawn earlier) of the FCC’s 2019 decision to open up the 2.5 GHz band for wireless use.  That 2019 decision, among other things, established an initial opportunity – through a Tribal Priority Window – for entities seeking to serve rural Tribal areas to obtain the spectrum before it is made available for commercial use.  One petitioner urged the FCC to include more than just rural areas, and another petitioner urged the FCC to establish a similar window for educational institutions.  But the FCC found that the parties merely restated earlier-rejected arguments and, therefore, dismissed their petitions.
    • To help educate Tribal entities seeking to provide wireless services on Tribal lands, the FCC announced that it will conduct a webinar on the use of spectrum and license requirements, with a particular focus on the 2.5 GHz band, 3.5 GHz band (see below), and unlicensed spectrum.  The webinar will be held on January 7, 2021 from 2:00 pm to 4:00 pm EST.
    • On December 23, 2020, FCC Chairman Pai circulated a draft to the other Commissioners of a Public Notice that, if adopted, would seek comment on the procedures that would be used for an auction of the 2.5 GHz band for commercial services.  The text of the draft has not yet been made publicly available.
    • On December 30, 2020, the FCC announced that an additional 22 applications filed in the Tribal Priority Window for licenses in the 2.5 GHz band have been accepted for filing.
       
  • The FCC completes its initial review of applications from its first auction of mid-band spectrum for 5G services.
    • On December 3, 2020, the FCC released a Public Notice announcing that it has, upon initial review, found the applications listed here that were filed by bidders that won spectrum in the 3.5 GHz band to be acceptable for filing.  Interested parties had an opportunity to object to the applications by December 14, 2020.  The FCC will release a separate Public Notice to announce when the applications have been granted and the licenses will be issued.
    • The FCC released two Public Notices regarding the deployment of Environmental Sensing Capability (“ESC”) sensors used to protect federal incumbents in the 3.5 GHz band.  One Public Notice approved the updated ESC sensor deployment and coverage plans of CommScope, Google, Federated Wireless, and Key Bridge Wireless.  The updated plans indicate that the parties have satisfied the sensor coverage requirements for additional dynamic protection areas.  Another Public Notice approved Key Bridge’s request for a six-month extension to resubmit its ESC software for testing due to restrictions caused by the COVID-19 pandemic.  Key Bridge’s initial ESC approval was conditioned on successful resubmission and testing of its software by December 31, 2020.
       
  • The second auction of mid-band spectrum for 5G services commences as appeals trying to stall the auction are rejected.
    • After a years-long proceeding, the FCC announced that bidding in the highly anticipated auction for spectrum in the 3.7-4.2 GHz band, known as the “C-band,” began on December 8, 2020.  FCC Chairman Pai stated that “[b]y freeing up this wide swath of critical mid-band spectrum, the FCC is paving the way for Americans to receive fast 5G wireless services.”  As of the last round of bidding on January 5, 2021, the C-band auction has raised approximately $78.5 billion in gross proceeds, making it the highest grossing spectrum auction conducted by the FCC so far.
    • Meanwhile, in the courts, the D.C. Circuit issued an opinion on December 18, 2020, dismissing the appeals and petitions for review by the Small Satellite Operators and PSSI Global Services of the FCC’s decision to make the C-band, which had principally been used for satellite services, available for commercial wireless services.  The Court, among other things, affirmed the FCC’s authority to modify – but not make fundamental changes to – the satellite operators’ authorizations so that the spectrum can be repurposed for wireless operations.  It also determined that the ORBIT Act prohibits the auction of spectrum that will be used for satellite communications, not the auction of spectrum that is currently used for that purpose.
    • Prior to releasing its opinion, the D.C. Circuit had released a Judgment on December 8, 2020 announcing that the petitions and appeals had been dismissed, signaling that the FCC could proceed with its auction (as noted above) as planned.

High-Band Spectrum

  • The FCC may seek public input on reallocating satellite spectrum in the 12 GHz band for commercial wireless use.
    • On December 29, 2020, the FCC announced that Chairman Pai circulated a draft Notice of Proposed Rulemaking to the other Commissioners that, if adopted, would seek comment on whether to allow commercial wireless services in the 12.2-12.7 GHz (“12 GHz”) band, which is currently used for Direct Broadcast Satellite and other services.  According to the Fact Sheet released by the FCC, the FCC would seek input on, among other things, whether and how terrestrial wireless services would be introduced into the band given the incumbent uses, whether certain existing licensees should be granted terrestrial rights and/or licenses should be auctioned, and whether the band could be shared with incumbents.

Other Spectrum Matters

  • NTIA promotes spectrum sharing to expedite its use for commercial operations.
    • On December 15, 2020, the Associate Administrator of NTIA’s Office of Spectrum Management, Charles Cooper, released a post touting the Incumbent Informing Capability (“IIC”) dynamic spectrum sharing concept on which it is working with the Department of Defense.  Among other things, the post notes that the IIC builds on the spectrum sharing mechanism used for the 3.5 GHz band (see above) and should expedite the repurposing of spectrum for commercial uses. 

5G Networks and Infrastructure

  • NTIA announces two virtual roundtables on securing 5G networks.
    • On December 16, 2020, NTIA issued a notice announcing that it will conduct “industry roundtable listening sessions” on January 28 and February 25, 2021, as part of its implementation of the National Strategy to Secure 5G.  The first will focus on market incentives for 5G security, and the second will focus on principles for fostering global 5G vendor diversity and open, interoperable architectures.  Both will be from 10:00 am to 12:00 pm EST and held virtually, with online slide share and dial-in information to be posted on NTIA’s website
       
  • The FCC’s Section 6409 Infrastructure Order becomes effective on January 4, 2021.
    • The Section 6409 Infrastructure Order, which was adopted by the FCC on October 27, 2020, is intended to streamline the process of upgrading existing wireless infrastructure for 5G by further clarifying the parameters of what will “substantially change” the dimensions of an existing facility under Section 6409(a) of the Spectrum Act, 47 U.S.C. § 1455.

In the Courts

  • On December 9, 2020, a New Jersey federal judge granted telecommunications provider ExteNet Systems, Inc.’s request for injunctive relief to allow the construction of a network of small wireless facilities in the public rights of way in the City of East Orange New Jersey.  The Court found that the City had failed to act on ExteNet’s applications within a reasonable time under 47 U.S.C. § 332(c)(7)(B)(ii).  Relying on the presumption established in the FCC’s 2018 Third Report and Order and Declaratory Ruling (aka the “Small Cell Order”), the Court further found that the failure to act amounted to a prohibition of service in violation of 47 U.S.C. § 332(c)(7)(B)(i)(II) and 47 U.S.C. § 253(a).  With respect to its potential impact on 5G deployment, the Court’s most significant holding is its determination that the appropriate remedy for the City’s failure to act in a reasonable time is an injunction ordering the issuance of all necessary permits.

Legislative Efforts

  • President Trump signs into law the Consolidated Appropriations Act for fiscal year 2021, which includes 5G provisions relating to mid-band spectrum and network security.
    • On December 27, 2020, President Trump signed into law the Consolidated Appropriations Act, 2021.  Included in the Act is the Beat CHINA for 5G Act of 2020, which requires NTIA to remove or modify its operations in the 3.45-3.55 GHz band so that spectrum in the band can be made available for commercial use.  It also requires the FCC to commence an auction of spectrum in the band by December 2021, which the FCC is currently contemplating.  In addition, the Consolidated Appropriations Act includes the Don’t Break Up the T-Band Act, which repeals the statutory requirement that the FCC reallocate and auction the 470-512 MHz band (known as the T-Band), currently used by public safety entities, for commercial services by 2021.  Finally, the Act appropriates $1.9 billion to the FCC to fund a Reimbursement Program that will assist smaller advanced communications service providers with the costs of removing and replacing network equipment that poses a national security threat, as required by the Secure and Trusted Communications Networks Act of 2019.
       
  • The National Defense Authorization Act becomes law over President Trump’s veto.
    • On December 23, 2020, after having passed both the House and the Senate, President Trump vetoed the National Defense Authorization Act (“NDAA”) for fiscal year 2021.  That Act includes, among other things, provisions directing NTIA to submit a plan on how it will improve the coordination of federal spectrum by modernizing the infrastructure that federal agencies use to manage spectrum.  It also includes provisions prohibiting the use of Department of Defense funds to comply with the FCC’s decision allowing Ligado to use its satellite spectrum for commercial wireless services and the Secretary of Defense from contracting with entities using Ligado’s spectrum.  In vetoing the NDAA, President Trump stated that the Act “is a ‘gift’ to China and Russia” and “contains an amendment that would slow down the rollout of nationwide 5G, especially in rural areas.”  However, both the House and the Senate voted to override the veto, allowing the NDAA to go into effect on January 1, 2021.

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Authors

Russell H. Fox is a wireless communications attorney at Mintz. He guides clients through federal legislative, regulatory, and transactional matters. Russell also participates in FCC proceedings, negotiates spectrum agreements, and represents clients in spectrum auctions.

T. Scott Thompson

Member / Chair, Communications Infrastructure Litigation Practice

Scott serves as Chair of Mintz’s Communications Infrastructure Litigation Practice and represents clients in legal, regulatory, and policy matters involving telecommunications networks.
Angela Y. Kung draws on significant knowledge of the wireless regulatory landscape and experience at the FCC to advise clients on FCC rules and procedures. With particular expertise on spectrum use policies and auction procedures, she has shepherded Mintz's clients through several FCC auctions related to next-generation 5G wireless technologies and routinely advocates on behalf of clients to help ensure that the agency’s rules align with their interests.
Daniel Reing is a Member in the Mintz Technology, Communications & Media Practice who provides strategic regulatory and litigation counsel to benefit companies in the communications industry. Clients in the cable, broadband, and wireless sectors rely on Dan’s counsel to help advance key projects and achieve their goals.
Christen B'anca Glenn is a Mintz attorney who advises communications and technology clients on regulatory and compliance matters before the FCC. She also has trial and appellate litigation experience, including drafting pleadings, motions, and briefs.